COMMONWEALTH PENNSYLVANIA v. DAVID W. FROST (01/21/85)

Appeal from the Judgment of Sentence of January 23, 1984 in the Court of Common Pleas of Tioga County, Criminal Division, at No. 292 C.A. 1983.

COUNSEL

James T. Rague, III, Wellsboro, for appellant.

James E. Carlson, District Attorney, Wellsboro, for Com. appellee.

Popovich, Watkins and Lipez, JJ.

Author: Watkins

[ 342 Pa. Super. Page 174]

This is an appeal from the imposition of a sentence of incarceration following a guilty plea to a charge of driving under the influence. The question presented is whether an individual who has successfully completed a period of Accelerated Rehabilitative Disposition arising out of an arrest under Section 3731 of the Motor Vehicle Code of 1976, 75 Pa. C.S.A. § 3731,*fn1 (hereinafter referred to as "old drunk driving law"), may be sentenced as a second offender under Section 3731, 75 Pa.C.S. § 3731 Supp. 1984.,*fn2 (hereinafter referred to as "new drunk driving law."), as it was amended in 1982. We hold that he may not.

On March 2, 1979, David Frost was accepted into the Accelerated Rehabilitative Disposition (hereinafter referred to as "ARD") program for a charge under Section 3731 of the old drunk driving law. He successfully completed the program and the charge was dismissed. On November 14, 1983, Frost entered a plea of guilty to a charge of driving under the influence in violation of Section 3731(a)(1) and (4) of the new drunk driving law. At the time of sentencing, the judge construed Section 3731(e)(2) of the new drunk driving law as requiring individuals who had successfully completed a period of ARD under the old drunk driving law to be treated as second offenders for sentencing purposes. Therefore, he indicated that a term of incarceration for a period of at least thirty days was mandated by Section 3731(e)(1)(ii) of the new law. Frost was accordingly sentenced to thirty days to twelve months in the Tioga County Jail. Frost filed a motion to modify sentence which was denied and dismissed on February 15, 1984, and this appeal followed.

On appeal, Frost argues as he did at the time of sentencing, that the lower court misconstrued the provisions of the new drunk driving law. The first applicable provision of the new law is Section 3731(e)(1)(ii) which requires a mandatory

[ 342 Pa. Super. Page 175]

minimum term of imprisonment of not less than thirty days "if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years." The question which must be resolved is whether acceptance of ARD under the old drunk driving law should be considered a conviction within the meaning of subparagraph (e)(1)(ii). The sentencing judge and the Commonwealth have taken the position that it must be so considered due to the language of Section 3731(e)(2) of the new law which provides:

Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.

In support of its position, the Commonwealth has cited Commonwealth, Department of Transportation v. McDevitt, 57 Pa. Commw. 589, 427 A.2d 280 (1981), which addressed the question of whether acceptance of ARD can be considered a conviction for purposes of classifying motorists as habitual offenders under Section 1542 of the Vehicle Code, 75 Pa.C.S. § 1542, Section 1542(c) of the Vehicle Code provides that an acceptance of ARD for any of the offenses enumerated in Subsection (b) of that section shall be considered an offense for purposes of applying the statute. In McDevitt, the appellant had been accepted into the ARD program after two arrests for three of the offenses enumerated in Section 1542(b). Based upon those offenses, the Department of Transportation determined that the appellant was an habitual offender within the meaning of Section 1542 of the Vehicle Code. On Appeal to the Court of Common Pleas of Bucks County, the court ...

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